Shields v. State

• Decision Date: 20 June 1991
• Docket Number: Nos. 10-89-284-C,10-89-285-CR,s. 10-89-284-C
• Parties: David M. SHIELDS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 831

820 S.W.2d 831

David M. SHIELDS, Appellant, v. The STATE of Texas, Appellee.

Nos. 10-89-284-CR, 10-89-285-CR.

Court of Appeals of Texas Waco.

June 20, 1991.

El-Hadi T. Shabazz, Waco, for appellant.

John W. Segrest, Crim. Dist. Atty., Tanya S. Dohoney, Juanita Fielden, Asst. Dist. Attys., Waco, for appellee.

Before THOMAS, C.J., and CUMMINGS and VANCE, JJ.

OPINION

THOMAS, Chief Justice.

This opinion discusses the procedure for a Batson hearing. See Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Appellant, who is black, contends the State used a peremptory challenge in a racially discriminatory manner to strike a Hispanic juror from the jury which convicted him of evading arrest and criminal trespass. See Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 1366, 113 L.Ed.2d 411 (1991). The convictions are affirmed because the defense failed to offer evidence of relevant facts which tended to show the challenge was racially motivated. See TEX.CODE CRIM.PROC.ANN. art. 35.261(a) (Vernon 1989).

THE BATSON HEARING

The procedural and evidentiary aspects of the Batson hearing are occasionally misunderstood. It is an "evidentiary hearing" with the judge serving as the "fact-finder." Tompkins v. State, 774 S.W.2d 195, 201-02 (Tex.Crim.App.1987). It is an "adversary proceeding" with clearly identified burdens. Keeton v. State, 749 S.W.2d 861, 871 n. 1 (Tex.Crim.App.1988) (Teague, J., concurring). Thus, the usual procedural and evidentiary rules apply.

The defendant has an initial "burden of production" and the ultimate "burden of persuasion." Williams v. State, 804 S.W.2d 95, 97 (Tex.Crim.App.1991); TEX.CODE CRIM.PROC.ANN. art. 35.261(a) (Vernon 1989). These burdens are evidentiary, which means the defendant must produce evidence to sustain them. Initially, the defendant must produce evidence sufficient to establish a prima facie case that the state has engaged in purposeful racial discrimination through the use of its peremptory challenges. Batson, 106 S.Ct. at 1723. A prima facie case is the "minimum quantum of evidence" necessary to support the rational inference that the state has used one or more of its peremptory strikes in a racially discriminatory manner. Tompkins, 774 S.W.2d at 201. The trial court must initially decide whether the defendant has made a prima facie showing. Williams, 804 S.W.2d at 106.

Once a prima facie case is established, "then, and only then," does the burden shift to the state to offer a neutral explanation for each of its strikes against jurors of a cognizable racial group. Batson, 106 S.Ct. at 1723; Tompkins, 774 S.W.2d at 200-01; TEX.CODE CRIM.PROC.ANN. art. 35.261(a) (Vernon 1989). No case law or statute requires the prosecutor to give a neutral explanation under oath. Accordingly, the neutral explanation must appear in the record but not necessarily in the form of "evidence." The state may, of course, offer evidence in support of the explanations for its strikes.

Retaining the ultimate burden of persuasion on the question of purposeful discrimination, the defendant may offer additional evidence to rebut the state's explanations. TEX.CODE CRIM.PROC.ANN. art. 35.261(a) (Vernon 1989).

At the conclusion of the hearing, the court must determine whether the state gave a racially neutral explanation for each of the questioned strikes and, if so, whether each explanation was truly race-neutral or merely a pretext for a racially motivated strike. Williams, 804 S.W.2d at 106. The court may consider the presence or absence of any of the factors listed in Whitsey in deciding whether the explanations offered by the state were pretexts. Id.; Whitsey v. State, 796 S.W.2d 707, 713-14 (Tex.Crim.App.1990). The preferred practice is for the court to support its rulings by written findings and conclusions. The court's determination will not be disturbed on appeal unless it is "clearly erroneous." Whitsey, 796 S.W.2d at 726 (on rehearing).

As in any appeal, the court of appeals is bound by the record when reviewing a Batson point. See Haner v. State, 170 Tex.Crim. 68, 339 S.W.2d 212, 214 (1960) (on rehearing). Therefore, what constitutes the "record on appeal" is a question of critical importance, especially to the defendant who is responsible for providing an appellate record sufficient to demonstrate reversible error. TEX.R.APP.P. 50(d); Keeton, 749 S.W.2d at 871 n. 1 (Teague, J., concurring). Only certain documents are properly included in the transcript. TEX.R.APP.P. 51(a). Consequently, just because a document appears in the transcript does not automatically mean that it can be considered a part of the record on appeal. E.g., Jones v. State, 116 Tex.Crim. 88, 32 S.W.2d 464 (1930) (holding that trial judge's ex parte affidavit could not be considered part of the record on appeal). Documents such as the list of prospective jurors, their personal profile cards, the parties' "strike lists," and the prosecutor's voir dire notes are not part of the transcript. See Prosper v. State, 788 S.W.2d 625, 627 (Tex.App.--Houston [14th Dist.] 1990, pet. ref'd). Therefore, even if these documents are filed with the clerk and included in the transcript, the appellate court still cannot consider them. Jones, 32 S.W.2d at 464. However, they become a part of the record when admitted as exhibits at the hearing, thereby making them a part of the statement of facts. TEX.R.APP.P. 50(a).

Everything in the statement of facts is not evidence. Unsworn comments by counsel, although reflected by the statement of facts, are not evidence. Prosper, 788 S.W.2d at 626-27 n. 1. Consequently, unsworn recitations of what occurred during voir dire and jury selection or of jurors' personal characteristics are not evidence. For example, facts necessary to show the existence or absence of disparate treatment (showing that the prosecution did or did not strike jurors with characteristics similar to the challenged juror) cannot be merely recited into the record as evidence through unsworn statements. Id. at 626. Counsel who want "the record to reflect" certain facts must include those facts in the record as evidence either by sworn testimony, exhibits, stipulations, admissions or judicial notice. Because they have been sworn before voir dire, jurors' responses to questioning do constitute evidence. However, counsel often forego questioning jurors about information reflected on the profile cards, relying instead on the cards to reflect that information "for the record."

Unless reflected by the evidence, an appellate court does not judicially "know" where jurors were seated on the venire, which jurors were peremptorily struck by the parties, jurors' ethnicity, ages, occupations, styles of dress, religious preferences, or a myriad of other factors which may support or negate a charge that the state has used its peremptory challenges in a racially discriminatory manner. The most elaborately constructed, fact-based argument on appeal is for naught unless it is supported by evidence in the record.

THIS PARTICULAR BATSON HEARING

The following occurred after the completion of voir dire:

THE COURT: The State has struck ... Numbers 3, 5 and 10. Is that correct?

[PROSECUTOR]: Yes, your Honor.

THE COURT: The defendant strikes 4, 10 and 11.

. . . . .

[APPELLANT'S COUNSEL]: May it please the Court, juror number 5, which was struck by the State, Robert Diaz, we would request that the record reflect that Mr. Diaz is a member of [the] Hispanic race.

THE COURT: Does the State have any objection to [the record reflecting] that? ...

[PROSECUTOR]: No.

. . . . .

[APPELLANT'S COUNSEL]: Your Honor, at this time the defendant would move to strike and quash the jury ... on the basis of the case of Batson versus Kentucky ... on the grounds that the State of Texas has struck the only member of an identifiable minority race on the jury panel from which a jury can be chosen. And such--without a neutral reason stated by the State and given by the State, such constitutes discrimination and constitutes a violation of my client's right to due process and equal protection under the law.

THE COURT: All right. First of all, before we proceed, for purposes of clarifying the record, you earlier in this trial asked me to have the record reflect that everybody on the panel were of the white race. I assume that you want to amend that[?]

[APPELLANT'S COUNSEL]: I was in error there, your Honor. I meant to say of non-black, but--

THE COURT: Okay. ... Does the State have any response to the Motion?

At this point the prosecutor indicated that the State had neutral reasons for striking the Hispanic juror but argued that the reasons did not have to be stated because the defense had not made a "proper Batson challenge." However, after the court inquired about the reasons, the prosecutor gave this explanation for the strike:

Your Honor, the reason that--reasons that we struck [the Hispanic juror] is that he is a blue collar worker, basically, approximately 38 years old, which is the approximate age of [Appellant]. He has been employed there for a short length of time. Basically, that we just do not feel that because of his blue collar background and [Appellant's] blue collar background, that there might be some kind of sympathy or prejudice, bias toward [Appellant] in that matter.

Appellant's counsel then responded with these unsworn comments:

Your Honor, in response to those, first to take race. I'd like the record to reflect that Number One, Patricia Rose is 32 years of age, Number two, Delta A. Coulter is 32 years of age, Julie Trimble is 33 years of age, Peggy Dobecka is 36 years of age. That reaches all that we could have reached, but Gerald J. Barak is 33 years of age. All are very close in age to [Appellant].

Further, with regard to blue collar worker, depending on what that definition actually means, Patricia Rose is a secretary for the City of Waco; also falls in the age bracket; was not struck by the State.

Mr. T.M....